#### Danville, Hazleton and Wilkesbarre Railroad Co. *versus*Gearhart *et al.*

1. The true rule for determining damages, where land has been appropriated for a railroad, is the difference of value between the entire tract before the road was made and after it is completed:

2. The specific elements of computation may be given in evidence.

3. A witness testified that the land, the whole being 60 acres, was worth $200 per acre for farming purposes, and $400 for lots, it was proper to ask him on cross-examination by plaintiff whether he had not offered $1000 per acre for 10 acres before the railroad was contemplated.

4. A witness was properly allowed to testify what the land on which the road was-constructed was worth, without asking him what the whole tract was worth.

January 26th, 1875.

Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas, of *Northumberland*County, of September Term, 1874.

This was a proceeding under the general railroad law of February 19th, 1849, Pamph. L., 81, 2 Br. Purdon, 1215, *et seq.,*commenced at November Term, 1869, iu the court below, by Peter Gearhart, and others, to assess the damages from the location and construction of the railroad of the Danville, Hazleton and Wilkesbarre Railroad Company through the land of the plaintiff in Rush township, Northumberland County, about eight hundred yards from the court-house in the borough of Danville, containing about sixty acres.

The case was tried March 8th, 1873, before Rockefeller/ P. J.

The plaintiffs gave evidence of what land was occupied by the road, the draft of its location, etc., the manner in which it was cut by the road, the amount of fencing, and, generally, *261as to the disadvantages to the plaintiff by reason of the construction of the road.

G-. W. West testified that before the railroad was made the land was worth about $300 per acre as a farm ; the road would depreciate the farm for farming purposes, “ ordinarily considered he did not know that the road depreciated the whole tract; some of it would bring a little more and some a little less by the road going through it; it was being used as a farm when the company appropriated the land; it was also fit to be’laid out in lots; most of the land was, after-wards, in 1869, laid out in lots as the town of South Dan-ville ; for the purposes for which the owners have converted it, it has not been injured any.

There was other evidence of a similar character.

E. W. Conkling, a witness for plaintiffs, was asked what the land upon which the railroad of defendants was constructed was worth prior to the location and construction of the railroad.

Defendants objected, because it was not proposed to ask the witness what the whole tract was worth.

The court overruled the objection, and the defendants excepted.

The witness testified that he and others, five or six years before the railroad was made, offered the plaintiff $1000 per acre for ten acres of the land ; he thought the land was worth that much; the plaintiff refused the offer.

The defendants gave evidence for the purpose of showing that the land was of less value than it had been estimated by plaintiff’s witnesses; some estimated it as low as $150 per acre before the railroad was made.

A witness testified that the land was worth $200 per acre for farming purposes, and $100 to divide into lots.

Plaintiffs proposed to ask him if he did not offer to pay $1000 an acre for ten acres of this land before the railroad was contemplated. This for the purpose of showing that the witness’s estimate of the value of the whole of the land is a mistake, and also that the estimates by other witnesses of the plaintiffs, already examined, that the market valué of the land was only $150 an acre, was false.

Defendants objected, because evidence of an offer of witness, or any other person, for a portion of the tract, could not be evidence, and therefore irrelevant.

By the Court:

The witness having stated, in his examination in chief, that prior to the location of the railroad the land was worth $2G0 an acre for farming purposes, and $400 an acre for dividing up into town lots, I am of opinion that he may be *262asked in cross-examination whether he did not offer $1000 per acre for ten acres of the same land before the railroad was contemplated, for the purpose of affecting his testimony in chief, and the question is allowed to be asked for that purpose.

The defendants excepted, and a bill of exceptions was sealed.

Defendant offered deed, Mary Yorks to Peter Gearhart, dated 27th December, 1864, for her right, title, and interest in the land of plaintiffs. To be followed by proof that Mary Yorks was one of the heirs, and entitled to one-twelfth interest in the land, and to be followed by proof that the railroad of defendants was located on the land in 1867, for the purpose of showing the market value of the land just before the location of the railroad.

Plaintiffs objected, because a conveyance of an undivided twelfth part in December, 1864, is no evidence of what was the market value of the whole land in the fall of 1868, when defendants tendered their bond to secure the damages.

The Court sustained the objection and sealed a bill of exceptions.

The Court charged:

“ . . . In valuing land taken for public use as gross estimates of common life, the market prices are all that courts and juries can use as measures of value, and the question is not what the property might be worth for. some specific purpose, but the market value, and if it is land, the market value is measured by the price usually given for such land in the neighborhood, making due allowance for differences' of position, soil, and improvements.

" (The defendants, the railroad company, is responsible for all injuries which are the direct and immediate consequence of the construction of-the railroad to the whole tract of land through which it passes. The exclusive appropriation of a part, the inconvenience arising from a division of the property, or from increased difficulty of access, and the cost of additional necessary fencing, are considered alike the direct and immediate result of such construction.) When damages are assessed after the completion of the railroad, the difference in the value of the land before the location and after the completion of the road may be shown by the opinion of witnesses, confining them to the consideration of the direct and necessary consequences of the construction of the road.

“In considering the question of making just and due allowance for the advantages which may have resulted, or which may seem likely to result, to the owners of the land, *263the jury must be confined to the consideration of those advantages only which may have .resulted, or which may seem likely to result in consequence of the making or opening of said railroad, and of the construction of the works connected therewith. If the increased market value of plaintiff's’ land was the result of or in consequence of other matters, and not in consequence of the making and opening of defendants’ railroad, of course it is not to be taken into consideration by the jury.” ...

The verdict was for the plaintiffs for $1416.66. The defendants sued out a writ of error and assigned for error:

1-3. The rulings on the offers of evidence.

4. The portion of the charge in brackets.

*iS. P.*Wolverton, for plaintiffs .in error.

The proper inquiry in estimating damages as here, is the market value of the *entire*property before the construction, and what it would have sold for after the completion, regardless of any purpose of the owner relative to the property : Hornstein *v.*Atlantic & G. W. R. R., 1 P. F. Smith, 87 ; Thoburn’s Case, 7 S. & R., 411; Harvey’s Case, 11 Wright, 434; Delaware, L. & W. R. R. *v.*Benson, 11 P. F. Smith, 380; E. Pennsylvania R. R. *v.*Hottenstein, 11 Wright, 30; Watson *v.*Pittsburgh & C. R. R., 1 Wright, 480; Sch. Nav. Co. *v.*Farr, 4 W. & S., 375.

*W. C. Lawson*and <7. TF. Comly, for defendants in error,

cited E. Pennsylvania R. R. *v.*Hottenstein ; Watson *v.*Pittsburgh *&*Com. R. R., *supra*; Hays *v.*Briggs, 24 P. F. Smith, 373 ; Pittsburgh, Va. & Ch. R. R. *v.*Rose, Id., 362; E. Pennsylvania R. R. *v.*Hiester, 4 Wright, 53.

Judgment was entered in the Supreme Court, February 8th, 1875.

Per Curiam :

It has been held by this Court in numerous cases, that the true rule for determining the damages of a property-owner whose land is appropriated by a railroad company for i ts road, is the difference of value of his entire tract, as a whole, as it was before the railroad was laid upon it, and as it is or will be after the road shall have been completed. But it has never been said or held that the elements of computation are not to be given in evidence, as the means of enabling the viewers or the jury to reach a just conclusion upon the whole matter. So to hold would be to contradict the act authorizing the view and assessment. The act of 19th February, 1849, known as the general railroad law, requires the viewers, after having viewed the prein*264ises, to .estimate and determine the quantity, quality, and value of the lands so taken or occupied, and having due regard to and maldng a just allowance for the advantages which have resulted, or may seem likely to result; and after having made a fair and just comparison of the advantages and disadvantages, they shall estimate and determine whether any, and, if any, what amount of damages has been sustained, and make report. There may be many disadvantages to be considered before a just idea of the value of the whole tract,.after the road shall have been built, can possibly be formed. The manner the road cuts through the tract, the fields it spoils, the fencing rendered necessary, ditching, embanking, etc. To withhold the evidence of disadvantages is to disregard the act itself, and to prevent the viewers or jury from being able to compute the true value of the whole. The rule therefore contended for by the plaintiff in error is not infringed by admitting the evidence of those things which constitute elements in the final computation.

Judgment affirmed.